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European Court Of Human Rights Turns To Restrictive Irish Abortion Law

The European Court of Human Rights today held preliminary hearings on the case of an Irish woman claiming her human rights were violated when she was forced to travel to Britain for an abortion.

"The woman who has not been identified but is being called 'D' became pregnant with twins. One of these died in the womb and second was found to suffer abnormalities. D decided to have an abortion, but since Irish women are not entitled to have an abortion unless there is a serious threat to their lives, she was forced to travel to Britain. D claims that her inability to obtain an abortion in the Republic of Ireland was a breach of her human rights. The complaint is being made under two articles of the human rights convention: Article 3, that nobody be subjected to torture, in humane or degrading treatment or punishment, and Article 8, the right to respect for private and family life and of no interference by a public authority with the exercise of this right.

The case could potentially result in Ireland's constitutional ban on abortion being challenged by a panel of European judges. If the court were to find in favour of D in this case, it could mean the Irish government would be forced to extend the right to abortion to women whose foetuses were found to be abnormal. The case has been brought directly to Strasbourg court, and has never been before the Irish courts, the usual approach before going to Europe. It could take a year or more for a hearing and there is a possibility the case might not be found admissible."

Fianna Fáil:
No plans to change the legal situation. A spokesman said: "Unless something hugely dramatic happens, there are no plans to put a further referendum to the people." Taoiseach Bertie Ahern will not act on the issue of abortion during the term of the current Government, it was confirmed yesterday. A Government spokesman said it had "no plans on the general issue of abortion" despite Mr Ahern's assurance before the last general election that the matter would be addressed. Speaking after the defeat of the 2002 abortion referendum, the Taoiseach said: "It will be the work of the next government to study and understand the results and implications of this referendum, and to act upon it."

Fine Gael: Has no plans to seek a change in the legal situation. Fine Gael, which along with Labour campaigned for a No vote in the last referendum, said yesterday it had no plans to seek a change in the legal position in relation to abortion. This was despite a pledge by former party leader Michael Noonan in 2002 that Fine Gael in government "would legislate to reflect in statute law" the X case decision.

Labour: Supports the introduction of legislation allowing for abortion if there is a life-risk to the woman, a foetal abnormality that means the foetus will never be born alive, or a risk of "significant injury" to the physical health of the mother.

PDs: A party spokeswoman said it was "against abortion" but had a specific policy document on the matter. She added: "We don't impose a whip on party members, as it is a matter of conscience."

Sinn Féin: Supports the introduction of legislation allowing for abortion where a woman's life and mental health is at risk, or in cases of rape and sexual abuse.

Greens:
Have no policy on abortion, allowing for a free vote among elected representatives.

It follows from the launch of a major new campaign by the Irish Family Planning Association for the introduction of legal abortion services in Ireland. Announcing details of the campaign in early August, the IFPA's Chairperson, Catherine Forde said 'this campaign is of unique significance, as it represents the first major initative aimed at moving forward on abortion in this country. Previous campaigns on abortion have always been lead by anti-choice groups seeking further regressive and unworkable responses to abortion." 6217 women who gave addresses in Ireland had an abortion in Britain last year, according to recently released British abortion statistics. This means that at least 17 Irish women go to Britain for an abortion every day. 'This figure doesn't include the increasing number of women who go to the Netherlands, Belgium and France, because of cheaper flights and the lower cost of a termination' said Sian Muldowney, spokesperson for the pro-choice Alliance for Choice in a press release on this site.

The Irish Family Planning Association, today (9.08.05), launched a major campaign for the introduction of legal abortion services in Ireland. The 'Safe and Legal in Ireland' campaign will comprise a range of activities, including a legal initiative to challenge the status quo on abortion; a political lobbying campaign and sustained programme of national and international advocacy.

Announcing details of the campaign, the IFPA's Chairperson, Catherine Forde said, 'this campaign is of unique significance, as it represents the first major initative aimed at moving forward on abortion in this country. Previous campaigns on abortion have always been lead by anti-choice groups seeking further regressive and unworkable responses to abortion.

'Since the first Constitutional referendum on abortion in 1983, Ireland has changed: more women living in Ireland access abortion services and more women feel angry and frustrated that they have to travel to Britain and others countries to secure these services. The only thing that has not changed is the lack of courage and leadership demonstrated by successive Governments in dealing with abortion in a realistic and rational way.

The IFPA's 'Safe and Legal in Ireland' campaign is all about ending the hypocrisy of exiling women in crisis pregnancy that choose to have an abortion. Last month, UK Ministry for Health statistics showed that 6,217 women who travelled from Ireland had abortions in England in 2004. From the IFPA's own post abortion medical and counselling services, we know that potentially hundreds more women secured abortion services in countries such as the Netherlands, France and Spain last year. This highlights the hypocrisy of our legal ban on abortion, which is among the most restrictive in the world.

'Since its foundation, the IFPA has always challenged the restrictions that have prevented women and men making choices about the spacing of their children and caring for their own health. When we first opened our doors as a service provider and advocacy organisation in 1969, our great challenge was making contraception available. After decades of dealing with women with crisis pregnancy, we have decided to make our campaign for safe and legal abortions services in Ireland a priority. And we are confident that this campaign will have results.

'The campaign components have been endorsed by the Board of the IFPA in our Strategic Plan, and we are very pleased that Ivana Bacik, will be its main spokesperson,'said Catherine Forde.

In addition to unveiling the campaign, the IFPA also published its comprehensive policy position on abortion. Within the 13-point policy, the IFPA calls for the removal of Article 40.3.3 from the Constitution and says that abortion is a decision that should be made by a woman in consultation with her medical advisor. The IFPA also says that abortion is not an appropriate method of family planning and it should therefore only act as a solution to a crisis rather than as a means of regulating a woman's fertility.

The Safe and Legal in Ireland Campaign

Detailing the specific elements of the 'Safe and Legal in Ireland' campaign, Spokesperson, Ivana Bacik, said, 'the campaign components that we are announcing today are ' we hope ' just the start of what will become a very significant movement for legal abortion in Ireland. Over the coming weeks, months and even years, we intend to mobilise people on this issue and secure political commitments in advance of the next general election about moving forward on abortion.'

European Court: Legal Initiative

As a core activity of the campaign, the IFPA is facilitating a group of three women to challenge the Irish Government's ban on abortion in the European Court of Human Rights.

Yesterday (8.08.05) a group of women living in Ireland ' all of whom have had recent experience of a crisis pregnancy ' lodged a complaint to the European Court of Human Rights (ECHR). Their complaint centres around four Articles of the European Convention on Human Rights. These include Article 8 with regard to the right of privacy in all family, home and personal interests, and entitlement to no public interference from any public authority in exercising this right; Article 3 which protects individuals from ' inhuman or degrading treatment'; Article 2 which affords protection of the law to safe-guard the life of an individual and Article 14 which affords rights and freedoms without discrimination on any grounds.

'The IFPA has provided these women with the legal research and support to enable them to take this important case to the European Court. It is our assessment that the grounds under which these woman are taking the case are very strong, and we hope that the case will advance quickly through the Court, ultimately making a strong recommendation to the Government to address what, in our view, is a violation of human rights,' said Ms Bacik.

The identity of the three women will remain confidential as it proceeds through the European Court of Human Rights.

Political Lobbying

The IFPA will be seeking a meeting with the leaders of each of the political parties over the coming months to explain the rationale for safe and legal abortion, with a view to securing a commitment to move forward on the issue should they form part of the Government after the next general election.

According to Ivana Bacik, 'last month, Minister for State at the Department of Justice, Frank Fahey, appeared before a UN Committee on Discrimination against Women, and stated that this Government has no intention of changing the legal status on abortion. This complacent response will be challenged, as there is a responsibility ' at the very least ' to provide a legal framework for the Supreme Court ruling in the 1992 X Case. 'In the past, those seeking to further restrict Ireland's abortion laws have secured meetings at senior Government level, followed by commitments to tighten the law. Public opinion, most recently in the 2002 referendum, has shown that the Irish people do not want to move backwards. We hope, and expect that in our campaign for safe and legal abortion, people like the Taoiseach, Tánaiste and other party leaders will respond in a rational way.'

National and International Advocacy In preparation for the launch of the 'Safe and Legal in Ireland' campaign, the IFPA has been working with other pro-choice organisations to build support for our agenda.

'The response to date has been very positive, and we will now be extending this movement of support to include the wider community, including young politically active people who are anxious to see a realistic response to abortion in Ireland,'said Ivana Bacik.

Among some of the international work that is already planned, the IFPA and some Irish women who have had abortions will take part in hearings on abortion in the European Parliament in October.

Over the coming weeks, the IFPA will launch its campaign web-site, which will provide details of how the public can get involved, either through becoming a campaign activist or donating money.

'There are many, especially policy makers and politicians, who will not welcome this campaign for safe and legal abortion, because of the many bitter and divisive rows that have gone before on this issue. However, this campaign is unique and different, as it is the first campaign that has been lead outside of a referendum which looks to move forward on abortion,'concluded Ms Bacik.

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The Government has rejected a claim at the European Court of Human Rights that a woman seeking an abortion in Ireland was treated in an inhuman and degrading fashion by the State.

The Government has also rejected claims by the woman's legal team that the State's regulations breached human rights conventions on privacy and family life; the right to receive information; the right to an effective remedy; and the prohibition of discrimination.

The woman, identified only as "D", is an Irish national who was described in court in Strasbourg yesterday as "a woman of education and means". It was a preliminary hearing and a ruling is awaited on whether the case is admissible for a full hearing.

Counsel for "D", Barbara Hewson, told the court the woman's pregnancy with twins in late 2001 was initially "a joyous occasion".

However, after eight weeks one foetus stopped developing and died. The second foetus had Trisomy 18 or Edward's Syndrome, a fatal abnormality.

Ms Hewson told the court her client wished to take no part in a wider debate on abortion but is seeking a declaration that in dealing with lethal, foetal abnormality, the State had breached six articles of the Convention on Human Rights.

She maintained that the devastating impact of the diagnosis was unnecessarily exacerbated by the Regulation of Information (Services Outside the State for Termination of Pregnancies) Act, 1995. This Act prevents a doctor from advocating abortion as well as making a referral for a patient with an abortion provider, where the life of the mother is not at risk.

Counsel for "D" maintained that the State, having advised on the condition, had effectively reneged on its responsibility for treatment. It was also argued that "D" was discriminated against as a pregnant woman or as a pregnant woman with a lethal foetal abnormality.

Counsel explained that ultimately "D" made arrangements with her partner and travelled to Britain for an abortion.

However, counsel for the Government, Donal O'Donnell SC, said the only restrictions imposed by the 1995 Act were limited ones relating to directive counselling or helping to arrange an abortion. Mr O'Donnell argued that the State now guarantees the right to freedom of information on abortion as well as the right to travel.

Mr O'Donnell told the court that a finding in favour of "D" would be, in effect, a direction to Ireland on the type and regulation of such services, an issue into which the court had previously said it would not go. Such a move, he argued, would potentially turn the Court of Human Rights into a legislative body, and that had not been envisaged by the signatories to the convention.

In relation to "D"'s claims, Mr O'Donnell said she had not sought legal advice at the time of the pregnancy, nor had she sought to challenge the regulations or seek a hearing in camera or use a pseudonym, all of which were avenues open to her.

Mr O'Donnell said that even in the time after the abortion it had been open to "D" to seek a declaration that her rights had been abused, but she had not done this. The Court of Human Rights was being used as a court of first instance, Mr O'Donnell argued.

In response to a question from the Irish member of the court, Mr Justice Hedigan, Ms Hewson said the Court of Human Rights could accept jurisdiction where an applicant had no reasonable prospect of success in the legal system in his or her home country.

Ms Hewson said time and anonymity had been issues during the pregnancy, while after the pregnancy the issues were anonymity and the tendency of the Irish courts to treat the issue as "moot", something that is past or no longer relevant.

Where this has happened applicants could be left with substantial legal bills for the Government's legal team as well as the likelihood of being identified, she said.

In his response to Judge Hedigan, Mr O'Donnell instanced the "X" case and the "C" case, which had demonstrated that anonymity was available to litigants. A date for the court's ruling has not been set.

I am aware that this an emotional issue for many people, but people should be respectful enough of women to allow women to decide for themselves whether they have an abortion or not. The woman's right to bodily integrity is the most important issue here and should be the one that we give most importance to. A woman should not be forced under any circumstances to remain pregnant when she does not want to be. To say to a woman that she must go through with a pregnancy is an invasion of her privacy and also an assault on her human rights.

The foetus is not a baby and is several months away from becoming one. It is a cluster of cells, incapable of thinking or feeling pain. As such, it is not a human in our understanding of what it means to be a human and it is offensive to accord it the same rights as real people.

Abortion is a normal safe procedure for the termination of pregnancies. The sooner we all get used to this and Ireland joins the mature nations of the world in allowing women to decide for themselves the better. I look forward to a day when abortion is provided freely, legally and safely in Dublin and every other town and city in our land.

In ruling, the Court does not have the authority to revise Irish law, it simply finds a violation of the Convention and then the Irish State must revise its laws to comply with its obligations under the Convention. The Convention obliges the State to take action to protect rights effectively, depending on the context and expense of such an obligation. The case of Norris v. Ireland 1988 provided an example of this process; the Court found that the criminalisation of homosexuality in Ireland was a violation of the right to privacy under the Convention and it then fell upon the Oireachtas to revise the law which it did by decriminalising homosexuality.